Heightened Union Activity Putting HR on Notice

Relief over failed attempts to revive the Employee Free Choice Act may be short-lived as employers face new pressures posed by a resurgent labor movement and a more union-friendly National Labor Relations Board.

Recent actions by the NLRB, including a June 22 proposal that would speed up the union election process, have some private-sector employers bracing themselves for a renewed organizing push. While union membership has been steadily declining since its peak in the 1950s, recent battles over collective bargaining rights in Wisconsin and other states and a more labor-friendly Obama administration appear to have re-energized labor activists.

“Over the next several months you’re going to see a renewed emphasis on organizing,” says Mike Asensio, with a partner in law firm Baker & Hostetler in Columbus, Ohio. “This will put a big burden on employers to get involved in labor relations issues on a day-t-day basis rather than waiting until there is a threat.”

Asensio says that the recent NLRB proposal, which would shorten the time between the filing of a petition to take a vote on joining a union and the actual election, will “deprive employees of an opportunity to hear an opposing or contrarian view and that will be extremely detrimental to employees.” An organizing campaign lasts about 40 days, but the new proposal could compress it into as few as 10.

Asensio has dubbed the plan “EFCA light,” referring to the 2008 federal legislation that would have eliminated secret ballot elections, which are how unions are formed under current law if organizers could get the majority of workers to sign a union authorization card. Efforts to resuscitate the bill have so far foundered.

While private-sector employers are being advised to be watchful of any signs of union activity, fears over a private-sector organizing push are premature, according to Josh Goldstein, a spokesman for the AFL-CIO, a federation of labor unions representing about 12 million workers.

The proposed rule is “a very modest change to a seriously broken labor law,” Goldstein says. “I think the effect on organizing is yet to be seen. I don’t think anyone expects this to have the same effect of EFCA. It’s a very small tweak in removing a barrier to a process that doesn’t work for employees or management.”

Goldstein says that employers have been lulled by a largely inactive NLRB under the Bush administration, making even the most modest proposals by the current board seem “like the sky is falling.”

“What people are seeing now is an NLRB that’s actually doing its job after 10 years of not doing it,” he says. “From the first board decisions, corporate interest groups have been up in arms that an independent government agency is actually doing its job. Is it a drastic change? Possibly.”

In addition to the NLRB proposal to accelerate elections, the Labor Department issued a June 22 proposal to clarify when employers must publicly disclose agreements made with labor relations consultants advising them during an organizing campaign. The move to regulate what the Labor Department calls “persuader activities” is widely viewed as another boon for unions.

Business leaders have also decried the NLRB’s recent unfair labor practice complaint against aerospace giant Boeing Co. Charging that the Chicago-based manufacturer was retaliating against its largest union by moving production of its 787 Dreamliner to a nonunion plant, the NLRB recommended in April that Boeing shift the work to a union facility in Washington state.

That same month, the NLRB filed lawsuits against two of four states with constitutional amendments barring private sector employees from organizing using the card check method, which was a key component of EFCA.

Given these recent developments, Kevin McCormick, a partner with the law firm Whiteford Taylor & Preston in Baltimore, urges HR practitioners to review their policies to ensure compliance with the National Labor Relations Act, to stay informed on laws and regulations and union tactics, but most of all, to stay connected with their employees.

If these proposals take effect, “employers won’t know what hit them,” McCormick says. “The train will be coming ’round the bend faster than they can imagine, and they won’t have time to get their side of the story out. This would be a very significant blow for employers.”

McCormick says that HR can have a huge impact by making sure that employers are ready. “Companies get organized because someone’s asleep at the switch,” he says. “Make sure you have opendoor policies, that employees are engaged and don’t see work as drudgery. Above all, listen to them.”

There is no doubt that organized labor is becoming “palpably more aggressive,” according to Maria Anastas, a shareholder in the San Francisco office of the law firm Ogletree, Deakins, Nash, Smoak & Stewart.

“I try to impress on my clients in HR that you can’t underestimate the powerful connection these organizations make with the rank and file,” she says. “It absolutely affects how you connect with your employees.”

A still-flagging economy and concerns about layoffs and cutbacks in benefits has given organized labor a chance to be heard, she says.